Professor Thomas Franck died on 27 May 2009. He was a good friend and I remember him fondly. I would probably remember a lot more had he not made such killer martinis. Very dry, straight-up, with a twist. This was meant to have been posted on the anniversary of his death, but the exigencies of exam marking and a trip to Scotland for my brother’s wedding delayed matters. Tom would no doubt be amused that I got lost along the way and was late, as usual.
My colleague, Dr Catriona Drew, and I organised a memorial conference at SOAS on the first anniversary of Tom’s death. This is a rewritten version of one of the papers I gave that day. Tom, I think, played a variety of roles in his publications. At times, he commented, writing pithy short articles, especially for the American Journal, analysing developments. At other times, he was what could truly be called a publicist, taking international law out of our invisible academy to other interested groups, to reach out to people who are not like us—for instance, to domestic judges as well as to those civilians who have never been lawyers. There were also his more lengthy academic expositions of substantive issues. He wrote for diverse audiences on diverse topics. As Dickens would have said, he did the police in different voices. (But, believe me, when he tried to do a Scots voice it was atrocious—more like a squeaky Boston–Irish.)
Tom wrote a lot and I suspect that much of his work will not retain scholarly attention—for example, the short monograph Judging the World Court (1986) is tied so closely to the United States’ then–concerns with the International Court of Justice that its interest is probably restricted to International Court junkies and historians of international law and relations. No doubt this is true of much, if not most, academic writings (and how long do blog posts last?). On the other hand, some of Tom’s work will retain lasting interest, for example his writings on the use of force, but in this entry, I shall try to give an overview of one, fairly late, aspect of his writing—the three main theoretical monographs he published in the 1990s. In this decade he made his most significant contributions to international legal theory with the books The power of legitimacy among nations (1990); Fairness in international law and institutions (1995); and The empowered self: law and society in the age of individualism (1999).
A striking feature of Tom Franck’s more theoretical work is a sense of anticipation which gives it a visionary aspect. Indeed, at Tom’s retirement conference at NYU in October 2002, David Kennedy spoke of the innovatory nature of much of Tom’s work, “his ear for intellectual trends”, and his ability to anticipate and analyse issues which subsequently became central concerns in academic debate.
The sense of anticipation in Tom’s works takes the form of the constant refrain that we are on the cusp of transformation: that new political conditions or social developments or technological innovation mean that our understanding and explanation of the world require revision. For example, in The empowered self, he argues that there is:
a new but growing consciousness of individual worth, manifesting itself in the claim to personal autonomy and inherent human rights. Among these new claims, the most fundamental—and the most astonishing—is the demand selectively to choose the components of one’s personal identity. This new individualism challenges the limits on personal self-determination so long imposed by the traditional objects of allegiance.
The reason for this challenge, this transformation of the relationship between individual and State is simply that “we have entered a new era—engineered by modern technology and legitimated by new social attitudes and laws—that empowers each of us to ask who we are and then challenges us to make the answering of that question a central enterprise of our lives”. This transformative claim is thus facilitated by technological innovation, but the opening of new horizons, of new eras, underpins much, if not all, of Tom’s theoretical writings in the 1990s. For instance, in Fairness, Tom claims that:
we are witnessing the dawn of a new era, defined by both moderate scarcity and by an emerging sense of global community. We have not arrived there yet, but that is where we seem to be heading as we turn the corner into the third millennium. Both moderate scarcity and a shared sense of community have become constant characteristics of our contemporary world. These economic, social and political conditions have eventuated at the same time as the international legal system has reached a high level of maturity and complexity. This confluence of factors makes discussion of fairness both opportune and necessary.
What Tom seems to be positing in these works is an eternal quest for new horizons, identifying transformations which in turn will themselves be transformed. His identification of new eras, of trends and developments, have led some (myself included) to argue that at times his work can be idealist, if not downright naive. This is an argument he would not countenance, rather he consistently argued that what he was doing was to make predictions based on evidence, thus recognising that his arguments suggested possible contours for these new eras. In this shaping of the future, international law plays a crucial role because it is both a carrier and creator of emerging values; and for Tom, these values are those of liberalism.
For example, in The empowered self, Tom expressly states that the entrenchment of his vision of extensive individual autonomy is “still contingent”, but he nevertheless claims that existing “tendencies are important for their (admittedly fallible) predictive value, and for what they indicate about the other aspects of the societies in which they occur”. In particular, he claims that there is “evidence of an emerging global consensus, at least in principle but increasingly also in practice” that obstacles to individualism “must be addressed and progressively dismantled, until each person’s potential is unhobbled. Revolutionary recent innovations in technology and social consciousness make this a realistic goal”.
Tom’s theoretical work clusters around related conceptual pairs: legitimacy and fairness; individual freedom and individual responsibility; and social contract and community.
Legitimacy and fairness are really bracketed in together, as Tom’s over-arching concept of fairness relies on legitimacy. Fairness has two aspects: the requirement of legitimacy and that of distributive justice. Legitimacy is fundamentally a question of procedure: the requirement that proper mechanisms are in place to ensure the creation, interpretation and application of the law. Distributive justice is concerned, on the other hand, with the substantive worth of rules: is an appropriate or proper allocation of burdens and benefits secured throughout society by the rules themselves?
Tom sees these two factors as having different functions: legitimacy is concerned with order while justice deals with change. The two are independent in their operation: claims and arguments in favour of order within the international legal system can conflict with claims and arguments in favour of change. There is always the potential for conflict between these two vectors as they encapsulate different aspects of fairness: legitimacy examines process fairness and distributive justice moral fairness. A fair legal system must manage both these elements of order and change, of legitimacy and distributive justice, because people judge the validity of a legal system in terms of its consequences. Fairness, however, is a matter of shifting horizons, a matter of transformation. As Tom emphasises:
Fairness is not a fixed destination, it is a journey or process…Fairness as a destination remains for us always an open question. What matters is the opportunity for discourse: the process and its rules. We assume that fairness incorporates an element of equalization: of life chances and access to goods…The issue is not a society’s definition of fairness in any particular instance, but rather the openness of the process by which those definitions are reached.
The allocation entailed by the pursuit of distributive justice can, however, only happen in a community, in some existing social structure within which distribution makes sense. This assumes that there exists an international social system which not only demonstrates some continuity but also a structured relationship between the actors which is based on shared values and reciprocity, on the implicit promise to treat like as like. Further:
The element of reciprocity which underpins the emergence of community is not solely concerned with rights and rules, it is also about shared moral imperatives and values. To appreciate this aspect of the reciprocal nature of a community, it is necessary to understand that its members share a system not only of legal but also of moral obligations. The laws in a community thus evince not only the generally held belief that each must do what he or she is legally required to do, but also that each will discharge towards all others those obligations arising from the shared moral sense.
Tom is of the opinion that interdependence between actors on the international plane has now reached a degree that one can argue that there is at least an emerging sense of international community in this material, as opposed to a rhetorical, sense. This he explains on the basis of social contract theory—“the social contract is the only associational theory relevant to the inter-state system”:
The same social needs which propelled Greek city-states, the people of Prussia, and the inhabitants of the thirteen American colonies to a common association also compels the states of the world at the end of the second millennium. While most of the literature about the social contract addresses the formation of a community by persons, contractarian theory is also readily applicable to, and influential in, the evolution of a community of states.
But the international community of States is not the only community relevant to Tom’s theoretical concerns. There are myriad communities of affinity which transcend the State that empowered individuals may form in order to pursue common aims and values because “traditional territorial communities are incapable, alone, of resolving many of the more obdurate issues facing humanity”. Thus:
[The] emergence of transnational loyalty references is as functionally inevitable today as was the eighteenth-century emergence of liberal states in direct response to the dictates of industrial revolution and competitive overseas expansion. Now, as then, new challenges and new sources of nurture evoke new social and attitudinal formations. In many areas of endeavour—commerce, defence, environmental protection, health, entertainment, education—human needs and wants cannot any longer be satisfied by, or in, the state alone.
The existence of over-lapping communities to which individuals belong is compatible with Tom’s argument for fairness because that is embedded in liberalism. And the liberal foundation of his theory is most apparent in The empowered self. Here, the tenor of Tom’s argument is that increasing individualism, and the formation of transnational affinity groups “combine to point to the evolution of a complex, multilevel, vibrant new civil culture and civic society that slips the surly bounds of territoriality”, the projected outcome of which is not some form of world government, but rather “a liberal global neo-community, a civil society based on socially and legally protected individualism”:
the burgeoning canon of individual rights has begun to crack open the previously encrusted Vattelian system, transforming formerly unchallenged concepts of state sovereignty.
This process is not without its opponents and critics. Although Tom saw a movement towards cultural, social and political convergence “a certain hysterical undertow is making itself felt in the claims of exceptionalists to exemption from increasingly universally recognized principle and values” which liberals should disregard. We should not strive to preserve these exceptionalist claims as if they “were the last snail-darter or white leopard”:
Instead of immersing ourselves in guilt over the decline in, say, the cultural practices of human sacrifice or cannibalism, should we not celebrate the the growing—albeit very imperfect—coming together of so much of humankind around decent aspiration values: the sanctity of life, right to democracy, participation in governance, freedom of religion and expression, the right to a decent standard of living, the inherently equal worth of all persons?
Maybe Tom’s choice of human sacrifice and cannibalism is over-stating his case, to say the very least, the shift towards individualism away from the State perhaps engenders a paradox: although his concepts of individualism transcends the State, it is also ultimately dependent on the State. Although there may be international supervision of a State’s compliance with human rights, the State itself secures the possibility and exercise of individualism. Increasing individualism inevitably serves to entrench the State structure.
Nevertheless, with this increasing individual freedom comes, perhaps particularly for the lawyer, increasing moral responsibility and the need for a moral compass. Tom’s last public speech was delivered about six weeks before his death to mark the retirement of Andreas Lowenfeld from NYU. It is a characteristically witty and stylish piece, which is a retrospective reflection on the different path which their careers had taken. Andy Lowenfeld went from government service to international commercial transactions, while Tom took the academic route of public service international law. They both, however, converged in criticism of US claims to exceptionalism in international relations which emerged in the Clinton and Bush administrations:
Suddenly, a picture emerges in which Andy and Tom are teaching their students, advising their governments and private clients and shaping their public philosophy with a new role for lawyers in mind.
Tom termed this new role “the new clientage”:
the role of the lawyer is not simply to maximize his client’s advantages vis-à-vis its adversary. Rather, it is to ensure that each party to the specific dispute is fully aware of the precise cost to that party of succeeding at that cost. The lawyer’s obligation is to persuade the institutional setting within which the dispute is being addressed that the cost of succeeding is not fashioned so as actually to exceed the cost of some other form of settlement or resolution that might be reached or imposed. Does the advocate for torture know what the concomitant of that argument is going to cost your client “down the road”? Does the carpet-bombing of civilian sites have long-term costs to your client that will outweigh any short-term advantage to be gained by pounding those sites into temporary submission?
Oddly, that means preparing your own client to alter his sense of what is in his own self-interest. It may mean having to prepare your client to do battle with the very people who have been providing the essential political means by which he has been pursuing, heedlessly, ends that were never in his interest, or that were only in his narrowest short-term interest. The lawyer may need to change his client’s whole sense of identity of interest: between himself, as the leader, with those he purports to lead.
This is not a call for revolution, but more for a realignment and the assumption of responsibility—the responsibility of the lawyer to abide by and entrench the liberal values which are at the core of Tom’s conception of how international society should be. In its own way, it is Tom’s version of Philip Allott’s call for a revolution in the mind, and not in the streets.